Improving Access to Civil Justice
Last updated 20 July 2021
Latest: The Committee recently underwent further consultation with the legal profession and wider community. Submissions in response to this consultation will be considered by the Committee at its next meeting.
A revised version of the paper altering an incorrect hyperlink was issued on 1 June 2021.
2021: Further Consultation
2020-2021: Response to Initial Consultation
2019-2020: Initial Consultation
Widening the conversation
Initial consultation paper
What is the concern?
What is being proposed?
Why are we consulting?
Short-form trial procedures
Summary judgment triage procedure
Streamlining pretrial and trial processes
How to submit
2021: Second Consultation Round
At the Rules Committee's 21 March 2021 meeting, the judicial subcommittee on improving access to civil justice reported back to the full committee with a proposed response to the submissions to the initial consultation paper in late March 2021.
The subcommittee was of the view that any meaningful response to the matters raised during the initial consultation process require proposals for reform going beyond rules-making, extending to proposals for the amendment of primary legislation.
Obviously, these are not within the Committee's power to implement and, if the Committee ultimately adopts the proposals, will form the basis of a report to the Attorney-General for consideration by government.
The subcommittee's proposals were as follows.
The subcommittee proposed expanding the role of the Disputes Tribunal, positioning its as the primary court for a significant proportion of civil disputes. This was intended to allow a greater number of New Zealanders to take advantage of its existing inexpensive, flexible, and apparently-successful quasi-inquisitorial approach.
This will include increasing the jurisdiction of the Disputes Tribunal to $50,000, or possibly further, and renaming the Tribunal the “Community Court” or “Small Claims Court”. If the jurisdiction was expanded beyond $50,000, the subcommittee thought, it may be necessary to increase the right of appeal from decisions of the Tribunal.
To strengthen the Tribunal in exercising its functions, should these proposals be adopted, the subcommittee proposed providing for Tribunal to appoint the investigators already used in some cases as lay-judge members of the Tribunal in appropriate disputes (though the referee would remain the sole adjudicator). The subcommittee also proposed making various collateral amendments to the powers and procedures of the Tribunal consistent with its positioning as a primary civil court, including empowering the Tribunal to enforce its own orders.
The subcommittee was of the view that the District Court Rules 2014 already, in theory, provide a flexible procedure for the expeditious but just resolution of civil disputes. However, the Court currently, in the subcommittee's view, lacks the institutional ability to make use of that potential, and the profession lacks confidence in the Court as a forum for the resolution of civil disputes.
The subcommittee therefore proposed the revitalisation of the District Court's civil jurisdiction as the primary response at this level, rather than larger scale rules changes. The subcommittee proposed creating the position of Principal Civil List Judge. The Principal List Judge will be responsible for improving or restoring the expertise of the Court's civil registry and working with the Ministry of Justice to providing members of the community with timely and accessible information about court procedures and their rights.
The subcommittee also proposed introducing part-time Deputy Judges/Recorders, who will be appointed from among the senior ranks of the profession on a case-by-case or short-term basis, using their experience to supplement the civil expertise of the existing District Court Judges with civil warrants. The subcommittee identified this as allowing for a more flexible judicial resource that can be deployed on a case-by-case basis as required to in response to changing demands for judicial time.
The subcommittee also proposed minor revisions to the rules of court for the District Court.
In particular, the Committee proposed New Zealand adopting at least one of the pre-action protocols for civil proceedings currently used in the United Kingdom, in particular the requirement for a letter in advance of litigation to be served by creditors intending to bring debt collection proceedings in the District Court. This because the subcommittee was concerned that the Community Law Centres reported in their submissions to the previous consultation process that many people facing such claims do not seek their advice until after judgment has already been entered, not understanding the difficulties that arise from waiting until that stage. The subcommittee through that introducing pre-action protocols may assist in improving access to justice and redressing inequality of arms in such proceedings by requiring steps to be taken before proceedings are filed.
The subcommittee also recommended the Committee consider potentially allowing a more flexible process to be used for determining the substantive in some cases. This would involve elements of the more inquisitorial processes of the kind followed by the Disputes Tribunal. In particular, the Rules might allow judges to direct that the proceeding be set down for determination on the basis of the initial disclosure alone, and without any further interlocutories, given what is in issue as revealed by the first judicial conference. The Rules might also provide for the substantive determination of disputes using an ‘iterative’ process whereby the issues in dispute are resolved at successive hearings.
The subcommittee proposed significantly streamlining the default procedure in High Court civil procedures by introducing a new framework. This would involve:
- disclosure rules being introduced in place of the discovery regime;
- an early comprehensive engagement with Judges at an issues conference;
- interlocutories presumptively being determined on the papers;
- greater emphasis being placed on the documentary record to establish facts, with the documents admissible as to the truth of their content;
- evidence being given primarily by way of affidavit, supplemented by oral evidence only in areas of factual contest; and
- greater controls being imposed on expert evidence.
The subcommittee also recommended, given the need for a change in litigation culture identified by submitters to the initial consultation process, recognising proportionality as an objective of the High Court Rules 2016, to signal the need for a change in approach to parties, counsel, and judges.
The Committee considered the subcommittee's report at its meeting of 23 March 2021.
The Committee was largely agreed with the recommendations set out in the report. There were a range of views around the table as to whether the proposals in the subcomittee's report represent the best possible means of addressing the concerns report by submitters to the initial consultation process.
However, the Committee was agreed the proposals should serve as the foundation for further consultation.
Further consultation was necessary because the subcommittee's proposals are substantially different to those set out in the initial consultation document. Further consultation also provided an opportunity to gather further evidence and a wider range of viewpoints, and provide the profession and wider community with an opportunity to shape the radical reforms envisaged by the subcommittee.
2020-2021: Response to Initial Consultation
At its 21 September 2020 meeting, the Committee agreed to establish a subcommittee to consider the submissions received and report back to the full Committee with a proposed response to the submissions made to the initial consultation process.
The subcommittee was comprised of:
- the Right Honourable Dame Helen Winkelmann, Chief Justice;
- the Honourable Justice Kós, President of the Court of Appeal;
- the Honourable Justice Thomas, Chief High Court Judge;
- His Honour Judge Taumaunu, Chief District Court Judge;
- the Honourable Justice Cooke; and
- His Honour Judge Kellar.
The Clerk to the Commitee provided secretarial and research support to the subcommittee.
Having fully disgested the submissions received, the subcommittee prepared an executive summary of the submissions received to aid its discussions.
The subcommitee met in October and November 2020, and February 2021. As discussed above, the subcommittee reported back to the full committee with a proposed response to the submissions to the initial consultation paper in late March 2021.
Submissions on the Committee's initial consultation paper closed on 11 September 2020. The Comittee received over forty submissions from a range of practitioners, academics, community organisations, and other court users. These submissions ran to over 400 pages in length, and addressed the technical proposals set out in the Committee's consultation papers, alternative suggestions for improving access to civil justice, and broader themes of the barriers members of the community face in coming to court.
The Committee is very grateful to all submitters, and is especially grateful for the time and energy that each submission represents. Particularly given the consultation period coincided with the COVID-19 pandemic, and associated disruptions, the Committee is deeply appreciative of the significant investment of resources making a submission represents.
The judicial subcommittee on access to civil justice has had prepared an executive summary of the many submissions received in order to assist in determining how to respond to the submissions and what proposals to advance.
Please find below most of the inividual submissions received in response to the Committee's initial consultation papers. These have been redacted in some cases to protect the privacy of submitters by the deletion of contact details. A small number of submissions have been witheld from this list at the request of individual submitters:
- Auckland District Law Society
- Ana Lenard
- Andrew Holgate
- Anthony Grant
- Austin Forbes QC
- Bell Gully
- Bill Bevan
- Dr Bridgette Toy-Cronin (Newsroom Article)
- Chris Patterson
- Citizens Advice Bureau New Zealand
- Community Law Canterbury
- Crown Law Office
- Dr David Hingston
- Debbie Lee
- Dr Bridgette Toy-Cronin (Submission)
- GCA Lawyers
- Geoff Sharp
- Gilbert Walker
- Hon Raynor Asher QC
- Ian Davey
- John Howard
- Joshua Pietras
- Judge Kellar
- Lawson Davey
- Lewis Winthrop
- Martha Roche
- Martin Dillon
- Meredith Connell
- Mortlock McCormack
- Nathan Smith
- New Zealand Institute of Patent Attorneys
- New Zealand Law Society
- Peter Stockman
- Philip Skelton QC and Tom McKenzie
- Piers Davies
- Porirua Kapiti Community Law Centre
- Robert Schultz
- Steven Zindel
- Toby Heale
- Waikato Community Law Centre
- Waitemata Community Law Centre
- WRMK Lawyers
- Youth Law Aotearoa
2019-2020: Initial Consultation
The Rules Committee was concerned, in undertaking initial consultation, to ensure that the voices of all court users are heard in deciding how to improve access to civil justice. This because the changes the Committee is considering involve procedures that, while technical and unfamiliar to many New Zealanders, reflect long-standing assumptions about how our courts should operate. The Committee identified from an early stage that it was important for all interested members of the community to be able to tell the Committee what they thought “justice being done” meant when they came to court to resolve their civil disputes.
The Committee was also interested in hearing from leaders of community groups, like city missions and budgeting services, who likely work with those who need to access civil justice but cannot afford to go to court or face other barriers. We also wanted to hear from organisations like the Community Law Centres and Citizens Advice Bureaux who assist self-represented litigants in navigating the court process. From both groups, we wanted to hear about their experiences of the civil justice system, and the stories of their clients. The Committee wanted to know the barriers their clients faced in accessing civil justice through the courts, and what they thought it deterred people from coming to court.
In order to help those not involved in civil litigation let us know their thoughts, the Committee produced a plain English consultation paper. This unpacked in straightforward terms themes the Committee was exploring.
Submissions in response to this paper closed on 11 September 2020.
Improving Access to Civil Justice - Initial Consultation (PDF, 257 KB)
Submissions in response to this paper closed on 1 September 2020.
One of the roles of the courts in New Zealand is to provide an independent and impartial forum in which citizens and other entities, including businesses, can resolve disputes. All citizens have a fundamental right to access to the courts for this purpose. Disputes may involve complex contractual disagreements between companies or the state through to private individuals looking to the courts when they believe their rights have been breached. Civil disputes are heard by different courts and tribunals depending on the nature of the case, its complexity, and the type of remedy available.
The object of the rules that govern how cases are heard in the District Court and the High Court is to ensure cases are dealt with in a just, speedy, and inexpensive way.
However, there is concern that there is an increasingly unmet need for civil justice in New Zealand. A growing number of unrepresented litigants are coming before the Courts, including many litigants who cannot afford legal representation. For example, it is often not cost‑effective to bring a claim worth less than $100,000 in the District Court.
These trends run counter not only to the fundamental right of all to access the courts, but also to the strategic goals of the Ministry of Justice and Attorney‑General.
The Rules Committee wants to address the trends identified above by embarking on a wide-reaching review of the High Court Rules and District Court Rules. The goal of this review, in line with the overall goal of the Committee, would be to improve access to justice in New Zealand by reducing how much it costs to bring a civil matter to court. The Committee wants to better enable judges, and encourage lawyers, to honour their responsibility to ensure that the costs of each case are as low as can be while ensuring that justice is done.
Every civil case should be heard in a way that keeps the costs of coming to court proportionate to the nature and value of the issues in dispute. Since the costs of bringing some cases currently outweigh their ability to provide potential remedies, the ways in which cases are heard may need to change. To support a change to the ‘presumptive’ model of civil procedure that applies in New Zealand, there may need to be a wider change in culture to provide better access to justice. In some cases, this would involve a very significant change in how judges and lawyers manage cases.
This would mean that adopting simpler procedures for administering and hearing civil cases may be a better option than keeping the status quo. For example, the parties in a case might need to demonstrate why justice would require a more time-consuming and expensive procedure than alternative procedures available to them.
The Rules Committee was established in 1908. Its membership and functions are currently set out in section 155 of the Senior Courts Act 2016. The Committee brings together representatives of judiciary, government, and the legal profession to make and improve the rules of practice and procedure that govern how courts run. The Committee believes the rules of court must promote access to justice so long as this is consistent with justice being done in each case.
More information on the Committee's membership, powers, and procedures can be found on the Courts of New Zealand website: About the Rules Committee.
Recognising the wide scope of these potential reforms, the Committee is seeking input at an early stage of the reform process. Feedback is sought from members of the legal profession, government agencies, the business community, and not-for-profit and charitable organisations, especially those involved in assisting self-represented litigants. This will allow the Committee to produce more specific proposals for later consultation.
The Committee has not yet decided its preferred options. However, to assist thinking about this issue, the Committee has produced a paper identifying several potential options. These fall under four broad headings and are more fully detailed in the consultation paper.
The Committee’s discussion paper contains examples of other procedures already in place overseas providing possible ideas for reform in these areas. The Committee is also making available the extensive initial research it undertook before drafting the discussion paper.
First, introducing a short trial process in the High Court, and/or modifying the existing short trial process in the District Court.
A presumption in favour of the abridged process may apply to cases satisfying certain criteria, such as cases below a certain value; not involving certain claims; or that could be heard in fewer than, for example, four days. This type of process may be particularly suited to legal disputes turning on issues able to be very precisely defined. Pleadings, witness briefs and will-say statements, and submissions would be limited in length.
Secondly, an 'inquisitorial' process could be introduced for the resolution of certain claims in the High and District Courts. This would be based, with significant changes, on procedures in place in some civil law jurisdictions (for example: Germany, France, Sweden).
The intention would be to allow parties to obtain an answer to their dispute more quickly and cheaply than under current procedures in suitable cases. This would be achieved by empowering judges to have a more active role in identifying the issues in dispute, fact-finding, and managing the hearing of the case. Limits would be imposed on the amount of evidence filed and the length of submissions made. Additionally, the judge may have a role in helping the parties to mediate their dispute, only deciding on the merits of the dispute once talks at the facilitation stage fail.
Thirdly, most proceedings could be required to begin with a summary judgment application. Summary judgment is a procedure currently available to a plaintiff or defendant where they can satisfy the Court the other party has no chance of success. Obtaining summary judgment requires a party to clearly set out their case and evidence at an early stage of the pre-trial process.
By requiring most parties to go through a summary judgment-like procedure, early clarification of the extent of the dispute, the real points of conflict, and the Court’s likely view could be received. This could help limit the extent, and cost, of the proceeding. Cases not suited to the summary judgment process, such as those involving fraud or liquidated demands, would not be required to start with the summary judgment-type process.
Fourthly, current pretrial and trial processes could be streamlined. These modified procedures would likely apply to both proceedings using the current ‘standard’ process and any alternative processes introduced. The Committee considers four current areas of procedure are in particular need of review:
i. Briefs of evidence
Briefs of evidence are the usual way evidence-in-chief is presented in civil trials. The Committee is aware of concerns these are expensive to prepare and they are often crafted by lawyers. Because they are not, as a result, in witness’ own words, they are often not particularly helpful in fact-finding. The Committee considers other ways of avoiding ambushes at hearings are available.
ii. Documentary evidence
It may be desirable to make greater use of documentary evidence. In many cases, the documents that witnesses’ oral evidence is used to introduce are of considerably greater use to fact-finding than oral evidence. The Committee is also interested in hearing other ideas about how to reduce the time and money spent on oral evidence being given. This may include allowing briefs to be taken as read or filed in the form of affidavits.
The default rules regarding discovery could be reduced. Discovery is a pretrial procedure by which parties to litigation can obtain evidence from the other party or parties to the dispute. The Committee is not satisfied that the costs of discovery are proportionate to the benefits it offers to doing justice, despite major reforms made in 2011. The Committee is prepared to contemplate potentially significant changes to the default position in relation to discovery. These could extend, for example, to removing a presumptive right to discovery in favour of a default 'disclosure only' model that would apply except where the Court was satisfied the interests of justice required more onerous obligations.
iv. Presentation of cases
As in some of the above proposals, judges could be given clearer powers to direct how parties present their cases. Possible rule changes in this area might include greater use of time limits in trials, or judges being encouraged to intervene more in the examination of witnesses.
The initial consultation phase ended on 11 September 2020. The Committee is currently processing the submissions received during the initial consultation period, and will publicise its response once this is determined.
Download or print this page (PDF, 139 KB)
In producing the final version of the consultation paper, the Committee considered a number of internal research papers. These are made available below to assist submitters who wish to read beyond the information contained in the paper:
- February 2019 Paper on Access to Civil Justice in the District Court by the Otago Legal Issues Centre (PDF, 430 KB)
- February 2019 Paper on access to Civil Justice in the District Court by the Committee (PDF, 6.8MB)
- Internal Research Paper on Alternative Models of Civil Justice (PDF, 1.4 MB)
- Internal Research Paper on Written Briefs of Evidence (PDF, 593 KB)
- Supplementary Internal Research Paper on Written Briefs of Evidence - English Model (PDF, 696 KB)
- New Zealand Bar Association High Court Short Form Trial Procedure as Proposed to the Committee (PDF, 2.4 MB)
- Internal Research Paper on Simplifying Discovery Obligations (PDF, 989 KB)